Constable v Repatriation Commission

7 Paragraphs 3, 4 and 5 of the statement of principles are as follows: 'Basis for determining the factors 3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces. Factors that must be related to service 4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person. Factors 5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person's relevant service are: (a) … (b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or (c) … (d) … (e) …' 8 The expression "experiencing a severe stressor" is defined in par 8 to mean that: '… the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person's or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror. In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include: (i) threat of serious injury or death; or (ii) engagement with the enemy; or (iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence; …' 9 In the present case the relevant stressor is said to be observation of a particular casualty clearance incident, described in the AAT's reasons as the "landrover incident". 10 Before considering the evidence in this case, it is appropriate to consider the meaning of the terms "hypothesis" and "threat". The word "hypothesis" is defined in the Shorter Oxford Dictionary relevantly as follows: '1. … A proposition put forward merely as a basis for reasoning or argument, without any assumption of its truth. … 2. A subordinate thesis forming part of a more general one; a particular case of a general proposition; a detailed statement. … 3. A supposition, an assumption; esp. one made as a starting-point for further investigation or research from known facts. … 4. … 5. An actual or possible situation considered as a basis for action.' 11 An hypothesis is advanced so that its validity may be established, not as an assertion of such validity. The word "threat", as a noun, is defined in the Shorter Oxford Dictionary as follows: '2. Oppression, compulsion; torment; distress, misery; danger. … 3. A declaration of an intention to take some hostile action; esp. a declaration of an intention to inflict pain, injury, damage, or other punishment in retribution for something done or not done; … Also, an indication of the approach of something unwelcome or undesirable; a person or thing regarded as a likely cause of harm etc. …' 12 An event which threatens to cause death or serious injury "involves" such a threat. However the statement of principles does not require that only events which may, themselves, cause or threaten death or serious injury are capable of being serious stressors. A serious stressor need only "involve" death, serious injury or threat thereof. The express inclusion of participation in, or observation of, casualty clearance as an example of a severe stressor demonstrates this point. A person who is suffering from previously inflicted injuries may be accurately described as "threatened" by death or serious injury, at least until the contrary is established or his or her condition improves. In the latter case the threatened "injury" is the possible long-term consequences of the present injury rather than that injury itself. 13 In this case, the applicant's hypothesis is that his alcohol abuse was caused by his having witnessed the landrover incident. In order that the hypothesis be reasonable for the purposes of ss 120 and 120A, that incident must have occurred within two years immediately before the clinical onset of his alcohol abuse. Thus it was necessary to identify the time of such clinical onset and the time and circumstances of the incident. I turn firstly to the question of the time of clinical onset. Clearly, the applicant had a long history of heavy alcohol consumption. He commenced drinking in Papua and New Guinea in 1963, at which time he was drinking six glasses of beer per day. This increased to ten glasses in 1963-64. By 1969-1970, he was drinking fifteen glasses of beer per day, together with four to five glasses of scotch. By 1971 he was consuming twenty glasses of beer per day. He said that when he went to Vietnam in July 1969 he found that alcohol was cheap and readily obtainable. He relied upon it to control his fears and to assist him in sleeping. One of the applicant's relations and a close friend had both been killed in Vietnam and so he was particularly apprehensive and aware of the dangers involved in the posting. He said that his consumption increased from the time at which he arrived in that country. 14 The applicant initially served at Vung Tau and then was transferred to Nui Dat. He sought such transfer because he believed that it would be harder to obtain alcohol in Nui Dat. However he was there exposed to more casualties than in Vung Tau, and continued to use alcohol to assist him with sleep. He was disciplined for alcohol-related offences during his time in Vietnam, and others frequently had to cover for him when he was intoxicated. 15 It is accepted that he is presently suffering from alcohol abuse. However the medical evidence is somewhat unsatisfactory concerning the date of onset of that condition. The AAT did not deal with the question. In the course of cross-examination, one of the psychiatrists, Dr Mulholland said that he had a "suspicion" '… that if somebody really looked at him during that time in Vietnam and, going by his history, a diagnosis of alcohol abuse could have been entertained and was - well, could have been, perhaps would have been.' Another psychiatrist, Dr Likely, saw the applicant on numerous occasions but appears not to have offered an opinion as to the date of onset of the condition. He was not cross-examined. The question is of some importance because the incident upon which the applicant relies as a severe stressor occurred at about Christmas 1969. That was slightly less than half-way through his tour of duty in Vietnam. Given the increase in consumption of liquor which apparently occurred from the beginning of his tour, there must be a good chance that such onset occurred prior to Christmas, 1969. 16 The evidence concerning the landrover incident was summarized by the AAT in pars 10-11 of its reasons as follows: '10. He stated that in Vietnam he observed a landrover transporting Australian casualties when he was driving to obtain supplies from Vung Tau (the landrover incident). The landrover was carrying 3 wounded troops and he was close enough to observe their bloodied bandages. He stated he felt physically sick, and continues to do so now if he recalls the landrover incident. In oral evidence the applicant said that the approaching landrover was blowing its horn to alert oncoming vehicles to pull over so that the landrover could cross a single lane bridge. He said that all approaching vehicles including his pulled over to let the landrover through. The applicant said that the landrover increased its speed once it was seen that the bridge was clear and he estimated it passed him at well over 60 klms per hour. He said that he observed the 3 soldiers, one he recalls sitting upright with bloodied bandages to his head. The applicant estimated that the landrover incident had occurred about Christmas 1969. 11. The applicant said that it was a shock to him but that he thought it had to be expected in Vietnam. He said he had seen wounded servicemen in hospital in Vung Tau but the landrover incident was different because there was so much blood observable. When asked about his reference to feeling sick in the stomach, he said this was due to nerves.' 17 The AAT referred to the decision of the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 which case establishes (at 97-8) that the proper approach to the application of ss 120 and 120A and the statement of principles involves the following four-step process: '1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.' 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a [statement of principles] determined by the Authority under s 196B(2) or (11). If no such [statement of principles] is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 3. If an [statement of principles] is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the [statement of principles]. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for capacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.' . 18 The importance of the distinction between steps 3 and 4 appears from the following passage in the judgment of Wilcox J in Dixon v Repatriation Commission (1999) 29 AAR 235 at [25]: 'The question whether a decision-maker reaches a conclusion adverse to a claimant at the step 3 stage or the step 4 stage is not a mere technicality. If belief is addressed at the step 3 stage, there is a risk that the decision maker will rule against a claimant simply because he or she is not persuaded the claimant's story is probably true. Although the decision maker should not think in terms of onus of proof, in a practical sense at the step 3 stage the claimant is likely to be left with this burden. Moreover, the decision maker is likely to reject the application even though he or she thinks the claimant's story may possibly be true. This would defeat the protection for veterans embodied in s 120(1), whereby a claim which fits the factors in the relevant Statement of Principles must be accepted unless the decision maker is satisfied, beyond reasonable doubt, that it is without justification.' 19 The AAT concluded that the landrover incident was not a severe stressor. At pars 32-34 of its reasons it observed: '32. After consideration of all evidence the Tribunal accepts that the raised facts point to hypotheses connecting the applicant's alcohol abuse or dependence with the circumstances of the service. The Tribunal must then consider whether the hypotheses are consistent with any of the factors set out in the [statement of principles]. If so then the hypotheses are deemed to be reasonable. With regard to the first hypothesis the evidence pointed to the occurrence of the landrover incident, however the Tribunal accepts the respondent's submission that the [statement of principles] requires that the person experienced an event that involved actual or threatened death or serious injury. The definition contemplates, in the Tribunal's view, that there is an immediacy of exposure to the event. Here the casualties were being transported to hospital and this is several steps removed from the threat envisaged in the definition. It is not evident that what the applicant observed was equivalent to a situation where, for instance, a person observed first hand casualties being cleared immediately after injuries were sustained or observed the injuries occurring. What the applicant observed was the end part of casualty clearance as is referred to in the [statement of principles]. When this is taken into account with the very brief period in which the applicant could have observed the casualties being transported in a landrover travelling in excess of 60 klms per hour, the remoteness of the experience is underlined. 33. Furthermore, the evidence does not point to the applicant experiencing fear, helplessness or horror. His descriptions were that he felt sick in the stomach. His oral evidence was that it was the sort of thing that had to be expected. This was consistent with evidence given to Dr Mulholland and to Dr Likely. Even accepting Mr Honchin's submission that the [statement of principles] requires only that the event "might" evoke fear, helplessness or horror, the Tribunal does not accept that the definition of severe stressor is met on the material here. The applicant was a soldier of quite senior rank at the time of the landrover incident with over 10 years experience in the Army. A reasonable person with the level of experience and seniority that the applicant had as an enlisted person would not experience fear, helplessness or horror in a brief exposure to casualties being transported to hospital. The danger to them was clearly passed. 34. For the reasons given the landrover incident does not meet the requirements of being a severe stressor. As set out in Repatriation Commission v Hill [(2003) 69 ALD 581] it is necessary that the material raising the hypothesis contains all the elements prescribed by the [statement of principles]. The applicant's first hypothesis lacks the crucial element of experiencing a severe stressor.' It is not necessary to consider the second hypothesis impliedly referred to in the above passage.

20 The AAT concluded that the applicant's claim failed at the third step prescribed in Deledio in that his hypothesis did not fit within the "template" prescribed by the statement of principles. Unfortunately, in my view, the course by which it reached that conclusion involved a number of errors concerning the requirements of the statement of principles and the nature of the task which it was undertaking. 21 My first concern arises out of par 32 of the AAT's reasons which is set out above. It appears to have considered that only an event which actually caused death or serious injury or subsequent casualty clearance sufficiently close in time and space to such causation could be a relevant event. Such an approach is not prescribed by the statement of principles. The statement of principles provides that participation in, or observation of, casualty clearance, per se, may be a severe stressor. That was the applicant's case. The question was whether that event "involved" death or serious injury or the threat thereof. The applicant claimed that, on his observations, it did so, largely because of the amount of blood which he saw. The AAT did not reject the landrover incident as a potential severe stressor because it considered that the condition of the men in question had not suggested the possibility of death or serious injury. It rather concluded that the applicant's observation of the men was at a time and place too far removed from the infliction of the relevant injuries. That approach ignored the fact that the statement of principles clearly included observation of casualty clearance as a possible severe stressor, and that such an event must often involve threat of death or serious injury. 22 It is also possible that the AAT simply concluded that the landrover incident was not sufficiently "traumatic" to constitute a severe stressor. If so, then that was an inference of fact involving an evaluation of the evidence, in other words "fact-finding". Deledio establishes that fact-finding occurs in step 4, but not step 3. The importance of this distinction appears from the decision in Dixon. 23 It was also necessary that the landrover incident '… might evoke intense fear, helplessness or horror.' The subject of the compound verb "might evoke" is the "event or events". This invites an examination of the event itself rather than its effect upon the applicant. In par 33 of its reasons, the AAT concluded that this requirement had not been satisfied, apparently because the evidence did not point to the applicant's having experienced such feelings. The AAT referred to the decision of Spender J in White v Repatriation Commission (2004) 39 AAR 67, suggesting that the decision establishes that an hypothesis will only satisfy the presently relevant statement of principles if the evidence points to the applicant having had such feelings. As I have said, prima facie the statement of principles does not say that. In my view, White establishes no such proposition. In that case, Spender J considered claims that an anxiety disorder and alcohol abuse were war-caused. The statement of principles for anxiety disorder required that the applicant have experienced 'a severe psychosocial stressor within the two years immediately before the clinical onset of' that condition. The expression "severe psychosocial stressor" was defined to mean 'an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative …'. 24 In connection with the claim for alcohol abuse, the applicant in White relied upon par 5(a) of the statement of principles for that disorder, namely 'suffering from a psychiatric disorder', rather than par 5(b) which is presently relevant. Thus, to the extent that the decision addressed stressors, it was in connection with those prescribed for anxiety disorder, not alcohol abuse. The two definitions are not identical. The requirement that a stressor evoke 'feelings of substantial distress in an individual' strongly suggests that the relevant event must have had that effect upon somebody. However use of the word "might" in the presently relevant definition conveys the sense of a possibility rather than actuality. 25 Spender J referred to the decision of Mansfield J in Stoddart v Repatriation Commission (2004) 74 ALD 366, affirmed on appeal in Repatriation Commission v Stoddart (2004) 77 ALD 67. That case was concerned with a question which was ventilated in argument in the present case: whether a subjective perception of a threat is sufficient for the purposes of the statement of principles. Spender J also referred to Woodward v Repatriation Commission (2004) 75 ALD 420 at 439-440. The passage in question certainly suggests that the words "experiencing a severe stressor" have a subjective element. However the issue seems to have been substantially the same as that considered in Stoddart. In any event none of those cases supports the proposition that an applicant must claim to have felt fear, helplessness or horror at the time of the relevant event in order that it qualify as a severe stressor. Any such claim would often be little more than an ex post facto reconstruction of complex emotions, probably experienced in unfamiliar circumstances. Further, one person may describe as a feeling of fear or horror, a sensation which another might describe as "shock" or "feeling sick in the stomach", expressions used by the present applicant. The applicant also told Dr Likely that he felt concern for the welfare of the injured soldiers. Such a feeling might be described as a feeling of helplessness. Dr Likely considered that the applicant had identified a feeling of horror. He said in evidence that he had been shocked and felt sick in the stomach 'due to nerves'. Even if, for the purposes of step 3, it was necessary that the evidence point to the applicant's having experienced feelings of intense fear, helplessness or horror, his claim had that effect. 26 Although it is not strictly necessary to do so, one other aspect of the matter deserves comment. In par 33 of its reasons, the AAT referred to the applicant's rank and experience and of a 'reasonable person' having such 'experience and seniority'. At step 3, the AAT was obliged only to assess whether or not the applicant's claim pointed to his having experienced a severe stressor. The statement of principles says nothing about the rank or experience of the relevant applicant, nor does it speak of any notional "reasonable" person. The question was not whether a reasonable person of the same rank and experience as the applicant would have experienced intense fear, helplessness or horror. The question was simply whether or not the applicant had identified an event which might have evokedsuch a reaction. Those other matters may have been relevant at step 4 but not at step 3. 27 I feel compelled to add that it would be a bold step for a tribunal of fact to speculate about the effect upon a soldier of an incident involving casualties in a theatre of war, whatever his or her experience or rank. As far as I can see, there was not much material concerning the applicant's background, training and experience, including his active service, nor of how a reasonable person might react to battle casualties. In recent times, only a very small proportion of the Australian population has been exposed to the horrors of warfare, or even to the rigors and incidents of military service. It may be unwise to assume that civilian life experiences give a reliable guide to conduct in war. 28 Out of fairness to the AAT, I should make one further observation. It may be that it was influenced in its approach to this case by apparent weaknesses in the applicant's case, particularly having regard to the medical evidence. It seems that until recently, the applicant had said relatively little about the landrover incident. Dr Likely, who first saw him in November 1999, did not then link the applicant's condition to that incident. He saw him again in October 2000 and again did not identify such a link. It was after a further interview in March 2004 that he did so. Dr Likely saw the applicant again in August 2004. One might infer from his report dated 5 August 2004 that the applicant was, by then, saying much more about the landrover incident than he had previously. By that time, Dr Mulholland had also seen him and had not found any link between the incident and his condition. To be fair to the applicant, it is nonetheless the case that from 1999, he regularly identified the landrover incident when discussing his war service with the psychiatrists. This may suggest that it had some impact upon him. The other major problem with the applicant's case is his long history of heavy drinking and his concession that he had increased his alcohol consumption in Vietnam before the landrover incident. These, and other issues, may be of some significance at step 4. 29 For these reasons, I conclude that the proceedings before the AAT miscarried and that the decision must be set aside. The matter should be remitted to the AAT for further consideration in accordance with law. I order that the respondent pay the applicant's costs of the proceedings. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate: Dated: 8 July 2005 Counsel for the Applicant: Mr D Honchin

Solicitor for the Applicant: Purcell Taylor Lawyers

Solicitor for the Respondent: Australian Government Solicitor